Brief facts out of which the present writ petition arises are that the evacuee land measuring 1072 Kanals and 5 Marlas were allotted in favour of Mst. Shamim Sultana daughter of Nawab Raza A.I Khan Qazilbash of village Waso Astana, Tehsil and District Jhang which was surrendered by the original allottee Mst. Shamim Sultana under paragraph 8 of M.L.R. 89 as amended by M.L.R. 91 of 1961. The competent Authority issued the instructions vide Memo. No.1022-PS-CSC/6t, dated 29-12- 1961 which reveal that refugees/allottees could exercise their option to purchase the surrendered land under the aforesaid regulation before 28-2-1962. The original allottee allegedly exercised her option to purchase the land in question within the stipulated period. The record of the same was misplaced in the office of the Deputy Commissioner/Collector, Jhang. The respondents also issued other instructions vide Memo. No.2664-62/2352-S(G)VI, dated 7-8-1962 which reveal that refugees/allottees could purchase the land surrendered by them under Martial Law Regulation No.89 as amended by Martial Law Regulation No.91 till 31-6-1962. The original allottee in terms of the aforesaid instructions allegedly exercised her option through registered post. The original allottee was allowed to deposit the price of the land in question and she had deposited Rs.20,805.13 as initial payment/instalments as is envisaged from Credit Certificates/challans attached with the writ petition as Annexures "C-1" to "C/5". The land in question was inherited in favour of the petitioners vide Mutation No. 1048 after the death of original allottee Mst. Shamim Sultana on 19-2- 1974. The names of the petitioners were duly incorporated in the Revenue Record. The possession of the land in question remained in the possession with the legal heirs of the original allottee. Noor Ahmad and others who posed themselves to be a tenant of the land in question filed application before the Deputy Commissioner/Collector for allotment of the land in question in August, 197& on the ground that original allottee failed to exercise her option to purchase the land till 15-5-1975 as per Press Note dated 16-4-1975 issued by the Secretary to the Government of Punjab Colonies Department. Whereas the present petitioners also took stand before the Deputy Commissioner/Collector that they had exercised the option in time and had made partial payment of the price of the land. The Deputy Commissioner/Collector dismissed the application of Noor Ahmad and others vide order, dated 5-4-1981 and observed that none of the parties is eligible for purchase of the land. Petitioners and Noor Ahmad etc. Being aggrieved filed ~ two appeals before the Additional Commissioner Consolidation, Sargodha Division, Sargodha who dismissed both the appeals vide consolidated order, dated 13-12-1981. Petitioners and Noor Ahmad etc. Being aggrieved filed two revision petitions before the Member Board of Revenue. The Member, Board of Revenue dismissed the revision of the petitioners vide order, dated 12-1-1984 whereas revision filed by Noor Ahmad etc. Was accepted by the Member, Board of Revenue vide order, p dated 2-3-1982.
Petitioners being aggrieved filed review petition before the learned Member, Board of Revenue against the order, dated 2-3-1982, who dismissed the same vide order, dated 12-1-1984. Hence the present writ petition.
2. Learned counsel for the petitioners submits that the original allottee predecessor-in-interest had exercised the option to purchase the surrendered land within the prescribed period and also had paid some of the amounts to the respondents approximately Rs.20,805.13 but all the Tribunals below did not consider this aspect of the case. He further submits that the learned Member, Board of Revenue admitted in the impugned order that petitioners had paid some amount to purchase the land in question. He further submits that all the Tribunals below had passed the order against the petitioners without applying their independent mind. He further submits that land in question was resumed by the respondents without providing personal hearing to the petitioners. Therefore, same is in violation of the instructions issued by the Board of Revenue, dated 25-7-1965 under the heading recovery of price of surrendered land under Martial Law Regulation No.89 of 1991. He further submits that the impugned orders are also in violation of mandatory provisions of section 24 of the Punjab Colonization Act, 1912 as the resumption order was passed against the petitioners without notice. He further submits that learned Member, Board of Revenue in similar circumstances accepted the revision petition filed by Abdul Sattar Khan and others and remanded the case to the Deputy Commissioner to decide the case afresh. He further submits that tribunals below had decided the case against the petitioners that public notice was issued in the Press. He further submit that public notice was issued in the Press is not fulfilled the lacuna or allow the respondents to resume the land from the petitioners without notice. He further submits that Noor Ahmad etc. Filed revision petition against the same impugned orders of the Deputy Commissioner/Collector, Jhang and Additional Commissioner Revenue, Sargodha Division, Sargodha which was accepted by the learned Member, Board of Revenue and remanded the case to the Deputy Commissioner to decide afresh without providing personal hearing to the petitioners and revision petition of the petitioners was separately decided against the petitioners.
3. Learned counsel for the respondents submits that petitioners did not approach this Court with clean hands and did not deposit purchase price to the respondents within the prescribed period.
He further submits that petitioners/predecessors-in-interest failed to exercise option to purchase the property in question within prescribed out of date. He further urged that petitioners filed parawise comments before the learned Member, Board of Revenue with the connivance of the staff of the Deputy Commissioner as is evident from reply of para.5 of the writ petition by the Deputy Commissioner. He further submits that petitioners prepared forged receipts as the petitioners took a stand before the learned Member, Board of Revenue that original receipts were destroyed due to flood in the year 1973. He further submits that this fact is duly supported by the respondent No.3 in reply of para.8 of the writ petition and took a stand that petitioners had tampered the photo copies of challan forms by which certain amounts were deposited by other persons with the District Accounts Officer in different transactions to support their claims of deposit of the amount in Mst.
Shamim Sultana's name. He further submits that petitioners did not file writ petition against the order of the learned Member, Board of Revenue dated 2-3-1982 passed in favour of Noor Ahmad etc. Therefore, those orders are final. He further submits that appeal of the petitioners was time- barred before the Additional Commissioner, Revenue and review petition filed by the petitioners against the order of the learned Member, Board of Revenue, dated 12-3-1982 in favour of Noor Ahmad etc. Was also dismissed by the learned Member, Board of Revenue vide order dated 12-1- 1984, as time-barred.
4. Learned counsel for the petitioners in rebuttal submits that when the basic order is without lawful authority then the superstructure shall have to fall on the ground automatically. He further submits that petitioners had challenged the vires of the order of the learned Member, Board of Revenue which was passed against the petitioners in their revision petition and review petition. He further submits that in case the writ petition is accepted then the order passed by the learned Member, Board of Revenue in revision petition of the Noor Ahmad etc. Shall have no effect against the petitioners. Noor Ahmad etc. Are entitled to take the land in question after the dismissal of this writ petition as first charge over the property in question is of the petitioners.
5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is pertinent to mention here that land in question was not resumed from the name of the petitioners by the respondents, in fact Noor Ahmad and others filed an application before the District Collector against the petitioners and the land was resumed after hearing both the parties by the Deputy Commissioner/District Collector vide order, dated 5-4-1981, in favour of the State. The appeal as well as the revision filed by the petitioners before the Additional Commissioner Revenue and learned Member, Board of Revenue were dismissed on merits as well as time-barred. Learned counsel for the petitioner failed to bring on record any cogent reasons for condonation of delay before the tribunal below. Petitioners failed to bring on record any applications filed by the petitioners for condonation of delay. Both the Tribunals below were justified to dismiss the appeal and review as time--barred as per principle laid down by the Honourable Supreme Court in Atta Ullah Malik's case PLD 1964 SC 236. Petitioners have attached 5 receipts qua the payment in respect of the land in question to the respondents which was denied by the District Accounts Officer. The representative of the Deputy Commissioner brought the original record which reveals that there were two amounts which were deposited by the predecessor-in-interest of the petitioners or petitioners which are as follows:-- Dated 29-12-1969 Rs.28,000 (Annexure "5") The original record depicts that this amount was deposited by the original allottee qua the land situated in Jhang Chak Katcha.
Dated 29-12-1969 Rs.12,000 was deposited by the original allottee through Agha Muhammad Hussain regarding the land in Jhang Janoobi whereas the land in question is situated in Mauza Wasu Astana.
The remaining receipts attached by the petitioners were not genuine as per report of the District Accounts Officer. It is better and appropriate to reproduce the reply of para.8 of written statement of Deputy Commissioner respondent No. 3 to resolve the controversy between the parties:-- "In compliance with the directions made by the Deputy Secretary (Colonies) Board of Revenue, Punjab, Lahore, the case was scrutinized by this office, during which it transpired that no option to for purchase of land in question was given by Mst. Shamim Sultana and, as such, the question of payment of any sale price in connection therewith does not arise. It is evident from the report submitted by the District Accounts Officer, Jhang that the petitioners have tampered the photo copies of challan forms by which certain amounts were deposited by other persons with the District Accounts Officer in different transactions to support their claims of deposit of the amounts in Shamim Sultana's name. The original challan forms are not available in office as the same are destroyed after a lapse of six years, But the District Accounts Officer's reports based on the entries in the relevant registers (L-I-Extraordinary Receipt) indicate that no such amount was deposited by Mst. Shamim Sultana with the District Accounts Office. A perusal of the entries recorded outside the stamp affixed by the Banking Authority on the challan forms also leads to support this view.
Similarly they are trying to show the amount deposited by other persons in Mauza Wasu Astana already adjusted in the Khatas of other villages to lead support to Mst. Shamim Sultana's case. The writ petition .Is not based on facts and the same is liable to be dismissed. "
The aforesaid reply of para.8 reveals that petitioners did not approach this Court with clean hands.
It is settled principle of law that he who seeks equity) must come with clean hands. In this view of the matter, I am not inclined to exercise my discretion in favour of the petitioners as per principle laid down by the Honourable Supreme Court in the following judgments: -- Nawabzada Ronaq A.I's case PLD 1973 SC 236 and Rana Muhammad Arshad's case 1998 SCM R 1462.
It is also admitted fact that all_ the Tribunals below have given current finding of fact against the petitioners. Therefore, writ petition is not maintainable as per principle laid down by the Honourable Supreme Court in Khudah Bakhsh's case 1974 SCM R 279. It is also settled principle of law that nobody is allowed to get the benefit of his own misdeeds as per principle laid down by this Court in G.M. Malik's case 1990 CLC 1783. It is also admitted fact that revision petition filed by Noor Ahmad and others was accepted by the learned Member, Board of Revenue vide order, dated 2-3-1982.
The review filed by the petitioners was also dismissed vide order, dated 12-1-1984 as time-barred.
The vested right had accrued to Noor Ahmad and others as per principle laid down by the Honourable Supreme Court in Rehmat A.I' s case 1993 SCM R 168 and the petitioners had not even impleaded them as I respondent in the present proceedings. Therefore, writ petition is liable to be dismissed as per principle laid down by the Honourable Supreme Court in M. Rameez-ul-Haq's case PLD 1992 SC 221.